Sri Venkateshappa vs Sri Muniyappa
2023 Latest Caselaw 721 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 11TH DAY OF JANUARY, 2023

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

               R.S.A.NO.1083/2021 (PAR/POS)

BETWEEN:

SRI VENKATESHAPPA
S/O LATE SONNAPPA
DIED BY HIS LRS.,

1.   SMT. LAKSHMAMMA
     W/O LATE VENKATESHAPPA
     AGED ABOUT 79 YEARS

2.   SMT. CHOWDAMMA
     D/O LATE VENKATESHAPPA
     AGED ABOUT 59 YEARS
     R/AT MAGERI VILLAGE
     KASABA HOBLI
     BANGARPET TALUK-563 114.

3.   SMT. SUNANDAMMA
     D/O LATE VENKATESHAPPA
     AGED ABOUT 56 YEARS
     R/AT CHIKKAHASALA VILLAGE
     KASABA HOBLI
     KOLAR TALUK-563 102.

4.   SMT. NEELAMMA
     W/O LATE RAMESH
     DAUGHTER-IN-LAW OF VENKATESHAPPA
     AGED ABOUT 46 YEARS
                               2



5.     KESHAV
       S/O LATE RAMESH
       GRANDSON OF LATE VENKATESHAPPA
       AGED ABOUT 21 YEARS

6.     NANDEESHA
       S/O LATE RAMESH
       GRANDSON OF LATE VENKATESHAPPA
       AGED ABOUT 15 YEARS

7.     SMT. NARAYANAMMA
       W/O NARAYANASWAMY
       D/O LATE VENKATESHAPPA
       AGED ABOUT 49 YEARS
       R/AT KURKI VILLAGE
       NARASAPURA HOBLI
       KOLAR TALUK-563 102.

8.     SRI RAVIKUMAR V.,
       S/O LATE VENKATESHAPPA
       AGED ABOUT 45 YEARS

       APPELLANT NOS.1, 4, 5, 6 AND 8 ARE
       RESIDING AT HALEPALYA VILLAGE
       TEKAL HOBLI, MALUR TALUK.            ... APPELLANTS

          [BY SRI NARAYANASWAMY P.M., ADVOCATE]
AND:

1.     SRI MUNIYAPPA
       S/O LATE SONNAPPA
       AGED ABOUT 72 YEARS
       RESIDING AT HALEPALYA VILLAGE
       TEKAL HOBLI
       MALUR TALUK-563 130.

2.     SRI DODDAKEMPANNA
       S/O LATE SONNAPPA
       AGED ABOUT 78 YEARS
       RESIDING AT BEML NAGAR
       KGF-563 113.
                                  3



3.    SRI CHIKKAKEMPANNA
      S/O LATE SONNAPPA
      AGED ABOUT 69 YEARS
      RESIDING AT HALEPALYA
      VILLAGE, TEKAL HOBLI
      MALUR TALUK-563 130.                   ... RESPONDENTS

     THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DATED 14.05.2020
PASSED IN RA.No.34/2016 ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE, KOLAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 16.01.2016
PASSED IN OS No.85/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC., MALUR.

    THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellants.

2. This appeal is filed challenging the judgment and

decree dated 14.05.2020 passed in R.A.No.34/2016 on the file of

the I Additional District Judge at Kolar.

3. The factual matrix of the case of the plaintiff before

the Trial Court is that the plaintiff and the defendants are the

joint family members and the suit schedule properties are the

ancestral joint family properties of plaintiff and defendants.

Hence, the plaintiff and the defendants are entitled for partition

and separate possession of 1/4th share each in the suit schedule

properties.

4. In pursuance of the suit summons, defendant Nos.1

and 3 have appeared before the Court through their counsel and

filed the written statement, wherein, admitted their relationship

with plaintiff. The plaintiff and the defendants as they are the

children of Sonnappa but denied the genealogical tree furnished

because Sonnappa not only having 4 children, but he was having

5 children. Out of them plaintiff and defendants are the sons and

one Smt. Kempamma is a daughter, she died leaving behind her

two sons and two daughters by name Srinivasa, Manjunath,

Munirathnamma and Shanthamma, and those are necessary

parties to the suit. Hence, the suit itself is not maintainable.

Further they have contended that, during the lifetime of

Sonnappa, plaintiff and defendant Nos.1 to 3 have divided all the

joint family properties in the year 1975; they got each 1/4th

share in suit item No.2 to 7 equally and allotted in suit item

No.8, ½ guntas each in favour of plaintiff and second defendant

and they are enjoying their respective shares. So far as suit

item No.9 is also the joint family property and it is in the name

of second defendant. He is an employee in BEML., KGF and he is

residing in that house. But there is no partition in respect of suit

item No.9. On 25.07.1992 Sonnappa died; after his death as

there were no documents for partition, the plaintiff and

defendants by advise of elders entered into a written

unregistered partition deed and as per the unregistered partition

deed 1st schedule was allotted to 1st defendant, 2nd schedule was

allotted to 2nd defendant, 3rd schedule was allotted to plaintiff

and 4th schedule was allotted to 3rd defendant. It is the

contention that after the partition, 1st defendant has purchased

the suit item No.1 of the schedule properties on 24.03.1979

under a registered sale deed, the same is his self acquired

property and in this item either plaintiff or other defendants

have no manner of right, title, interest or possession over the

same. So far as item No.9 is not yet divided and remaining item

Nos.2 to 8 already divided and they are respectively enjoying the

properties of their portions and hence prayed the Court to

dismiss the suit.

5. Defendant No.2 also filed the separate written

statement. He also admitted the relationship between the parties

and admitted that the suit schedule properties are joint family

properties and they are in joint possession of plaintiff and

defendants except suit item No.9. It is contended that Sonnappa

having 5 children. The plaintiff and defendant Nos.1 to 3 and one

sister by name Kempamma, who is the elder sister of plaintiff,

2nd and 3rd defendants and the said Kempamma was born in the

year 1946 before commencement of Hindu Succession Act.

Hence, she is not entitled for any share in the suit schedule

properties. Item No.1 of the suit schedule property is also a joint

family property purchased in the name of 1st defendant. The 2nd

defendant was working in BEML, K.G.F. Out of his own earnings,

he has purchased a vacant site at BEML Nagar, K.G.F., and it is

his self acquired property. The plaintiff and defendant Nos.1 and

3, have no manner of right to claim any share in the said

property. Hence, he prayed for granting of decree only in

respect of item Nos.1 to 8 and dismiss the suit in respect of item

No.9.

6. Having considered the pleadings, the Trial Court

framed the issues with regard to whether the suit item

properties are the ancestral properties and also whether the

plaintiff is entitled for partition and separate possession of 1/4th

share and an additional issue was also framed with regard to

whether the suit is maintainable in view of the defense taken in

the written statement.

7. The plaintiff in order to prove his case examined

himself as P.W.1 and got marked the documents as Exs.P1 to

P35. On the other hand, defendant No.1 has examined himself

as D.W.1 and also examined five other witnesses as D.Ws.2 to 6

and got marked the documents as Exs.D1 to D57.

8. The Trial Court after considering both oral and

documentary evidence available on record, decreed the suit and

came to the conclusion that the suit schedule properties item

Nos.1 to 8 are the ancestral properties and granted the decree of

1/4th share and declined to grant any relief in respect of item

No.8. Being aggrieved by the judgment and decree of granting

of 1/4th share in favour of plaintiff, an appeal was filed in

R.A.No.34/2016 before the First Appellate Court.

9. The defendants in the appeal have contended that

granting of share in respect of suit schedule properties is

erroneous and already there was a partition. Apart from that,

after the partition only item No.1 of the suit schedule property

was purchased by the first defendant. The First Appellate Court

formulated the point with regard to the ground, which has been

urged in the appeal and considering the material on record and

also on re-appreciation of both oral and documentary evidence

placed on record came to the conclusion that the Trial Court has

not committed any error in coming to the conclusion that there

was no any earlier partition and also came to the conclusion that

the Trial Court rightly comes to the conclusion that the claim

made by defendant No.1 that item No.1 of the property is the

self-acquired property, is not accepted and came to the

conclusion that the finding of the Trial Court is not erroneous.

Hence, the second appeal is filed before this Court.

10. The main contention of the learned counsel

appearing for the appellants is that both the Courts have

committed an error in not considering the material available on

record and fails to take note of the fact that there was a partition

to that effect. The document - Ex.D24 came into existence, the

same has not been denied. In spite of it, both the Courts have

committed an error in not considering Ex.D24. The learned

counsel also would vehemently contend that even though the

first defendant has contended that item No.1 of the suit schedule

property is purchased after the partition and erroneously came

to the conclusion that the same is also the ancestral property

and the very approach of the Trial Court as well as the First

Appellate Court is erroneous. The Trial Court and the First

Appellate Court committed an error in holding that Smt.

Kempamma, who is the daughter of the deceased Sonnappa,

is not a necessary and proper party. Both the Courts have

committed an error with regard to item No.9 of the suit schedule

property. Hence, it requires interference of this Court and this

Court has to frame the substantial question of law.

11. Having heard the learned counsel appearing for the

appellants and the grounds urged in the appeal and also on

perusal of the material available on record, the Trial Court while

considering the material available on record in paragraph No.13

in detail discussed with regard to the contention taken by the

first defendant and the third defendant in the written statement

though they contend that there was a partition in the year 1975

itself, but no documentary evidence discloses with regard to the

change of revenue entries on account of the said partition.

Admittedly, the said Sonnappa died in the year 1992 and even if

there was a partition in the year 1975 itself, there must be a

change of documents with regard to the partition and no

documentary evidence with regard to all the parties have acted

upon in terms of the alleged partition and also taking into note of

the discussion made in paragraph No.13, the Trial Court also

taken note of the admission given by D.W.1 that they have not

filed any application for change of Khatha in pursuance of the

unregistered partition deed and also taken note of the second

defendant was residing at KGF., from 1974 and also he does not

know anything about from whom item No.9 was purchased but

only he claims that the property was got in favour of defendant

No.2 by his father and having taken note of these are the

admissions elicited from the mouth of D.W.1, came to the

conclusion that there was no any partition among the family

members and the very contention of the first defendant that

there was a partition has not been accepted. With regard to

item No.9 also declined to grant any relief as the same was

purchased by defendant No.9 as contended. The First Appellate

Court also on re-appreciation of the material available on record

and also the grounds urged in the appeal came to the conclusion

that there was no any error on the part of the Trial Court in

coming to the conclusion that there was no partition and in detail

discussed the evidence of P.W.1 and particularly D.W.1, who

contend that item No.1 of the suit schedule property is an

exclusive self-acquired property and also considered the

evidence of DWs.1 to 5. In paragraph No.21 came to the

conclusion that whether the plaintiff has proved the existence of

joint family and held that it is well settled that mere existence of

relationship does not indicate the existence of joint family

properties. But there is a presumption under Hindu Law and also

taken note of the fact that one Sonnappa was the propositus of

the family and came to the conclusion that the plaintiff made out

a case that there was no any partition but when the defendants

took the specific defense that there was a partition, the same

has to be proved. But it is his case that the partition was

effected in the family and thereafter only he had purchased item

No.1 of the suit schedule property in the year 1979 i.e., after the

alleged partition of the year 1975 and taken note of no revenue

records and other documents which have been produced before

the Court indicating that there was a partition and also taken

note of the fact that defendant No.2, who has been examined as

D.W.6, claims that item No.9 of the suit schedule property was

the property belongs to defendant No.2. In order to substantiate

that the same is also purchased out of the money given by the

father and the same has been contended, no material is placed.

The First Appellate Court also while answering point Nos.1 to 4

considered the material on record and on re-appreciation of both

oral and documentary evidence placed on record confirmed the

judgment of the Trial Court.

12. The main contention of the learned counsel

appearing for the appellants is that Ex.D24 is not relied upon by

the Trial Court as well as the First Appellate Court. In order to

prove the factum that there was already a partition in the year

1975 itself, no material documents are placed before the Court,

any change of revenue documents consequent upon the partition

and there must be parties have acted upon in terms of the

partition. No substantial material is placed before the Court and

though the counsel has raised the substantial question of law

that the Trial Court has committed an error in granting the share

in terms of item Nos.1 to 8, and already there was a partition

and the said partition was reduced into writing in the year 1997

as per Ex.D24. Both the Courts taken note of no such material

to substantiate the contention that there was a partition in the

year 1975 and also it is the contention of the learned counsel

appearing for the appellants that the same was reduced into

writing on 03.10.1997 and in between 1975 and 1997 also no

documentary proof with regard to show that there was a

partition. When both the Courts have given the finding with

regard to the fact that there was no partition and only the said

finding is perverse, then, the Court can exercise the power

invoking under Section 100 of CPC., that perverse finding was

given but considered both oral and documentary evidence placed

on record and also considered the admission given by D.W.1 that

they have not given any application for change of Khatha and

also no material with regard to the parties have acted upon in

terms of the said alleged partition of the year 1975 and the fact

that the father died in the year 1992. In terms of the partition,

other parties have also not enjoying the properties and no

material is placed before the Court. When such being the case, I

do not find any force in the contention of the learned counsel

appearing for the appellants that there is a substantial question

of law to admit and consider the second appeal.

13. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

In view of dismissal of the appeal, I.A.No.1/2020 for stay

does not survive for consideration, the same stands disposed of.

Sd/-

JUDGE

cp*